PESA and its challenges

Panchayati Extension to Scheduled Areas was envisioned to enable local self-governance in various tribal scheduled areas. However, this act faces many challenges both at institutional and ground level:

State’s Reluctance to Implement and Adopt PESA: While all 9 states have notified the act, there are ambiguities in their own rules framed about it. This is hindering its quick adoption in their scheduled areas.

Administrative and bureaucratic reluctance

Power struggle between tribal communities and bureaucracy

Transfer of fund, functions and functionaries to the lower level government has not taken place after devolving statutory powers to the Gram Sabha and Panchayats.

Clear rules have not been laid out with respect to management of minor forest products and land, thereby making it more ambiguous to implement PESA. This is impacting traditional and environmental rights of tribals.

Tribals in these areas already have settled customs to address their governance problems. In some cases, they are not very open to adopting a new panchayati system.

Financial autonomy is merely on paper and Governor’s mandatory report are not prepared.

PESA is a most powerful legislation which can play an instrumental role in recognizing the rights of the tribal population in Scheduled areas over natural resources thus transforming their quality of life. It is almost true that due to lack of political will, their rights have been disregarded strategically.

Though central government has taken several measures to implement the Act in letter and spirit, lack of initiative from concerned state government is quite evident. Central government should take appropriate action to eliminate the loopholes in the central legislation immediately followed by a strong direction from political government to abide by the constitutional mandate. State government should follow the guideline issued by the central government to incorporate changes in the state Acts proposed by state level study reports, take appropriate measures to amend state laws which are in conflict with the provisions of PESA, take initiatives to enhance the capacity of government machinery and stakeholders who play vital role in actual implementation of the Act at the ground level.

Civil Society Organizations who have been fighting proactively for the issue has to play strategic role in building awareness among the stakeholders at each level and organizing the politically divided tribal communities. So, a multi-pronged strategy to address the issue from different aspect is the need of the hour.

The Forest Rights Act (2006) and the Panchayats (Extension to Scheduled Areas) Act (1996) have established a framework for local self-governance in demarcated (or “scheduled”) areas, yet their full implementation is fraught with many challenges.

Indigenous tribes constitute about 8% of India’s population and Forest Rights Act and PESA both go a long way in ensuring constitutional protection and empowering these people.

Virginius Xaxa committee has painted a bleak picture of the status of tribals.

Forest Rights Act recognize the right of tribal communities over trading in forest produce. The problems in implementation of the provisions of the Act are as follows:

Ministry of Environment and Forests had changed the law to throw open up to 40% of the country’s forests to private sector management. Allowing the private sector to use these lands for monoculture could have a ruinous impact on the ecosystem. In these areas the tribal communities have control over only 10-15% of the forest land

In Maharashtra, the control over forest resources has been appropriated by the forest department granting them control over lucrative trade running in crores of rupees over tendu leaves and bamboo.

absence of land record, low literacy, corruption and collusion between elite and officer derail the process

State override FRA clause under development pretext without adequate compensation and rehabilitation

Amendment of state laws in accordance with two laws. Empowering Gram sabha(financially, training, providing information). Recruiting more officers from the community. Governor report should be prepared on time. Fast track court to solve land grabbing issue. Participation of civil society and activist judiciary further add teeth to the twin laws which epitomize real swaraj as envisioned by Gandhiji.

“India remains among the few countries with a constitutional commitment to a liberal democracy that nevertheless lacks comprehensive anti-discrimination legislation .”

The Indian constitution was framed keeping in mind rights, disabilities, beliefs, marginalization and problems of all sections of the society. However, some problems exist:

Issues holding back India

Discrimination against lower castes:

Social integration of these sections is still lacking as casteism, untouchability and discrimination of women and disabled people is widespread. Despite several empowerment measures, some guaranteed by the Constitution itself, atrocities against Dalits and other lower castes continue unabated. The societal prejudice against these people manifests in violence against these people or them being deprived of equal rights.

Discrimination against women:

The fact that we are still debating whether women have the right to enter temples or Dargahs present a sorry picture on the status of women. The patriarchal nature of society has led to the perpetration of kangaroo courts in the form of Khap Panchayats which still treat women as second grade citizen. The concept of marital rape is not yet recognized. Despite several well intentioned measures of the government, women still face discrimination in several walks of life.

Discrimination against LGBT and transgenders:

While transgender suffer primarily due to societal biases, LGBT face discrimination by law in the form of Section 377 of IPC. The recent surrogacy bill approved by cabinet discriminates against adoption of children by same sex couple. The SC while hearing the curative petition in Naz foundation case directed legislature to take anti discriminatory measures

Discrimination against citizens on issues of Freedom of speech

The constant uproars over freedom of expression manifested in cases such as banning the book of Perumal Murugan, unabashed usage of sedition laws etc violate the fundamental tenet of liberalism

Communalism

Progressive rational and scientific ideas are not accepted well by the fringe groups that backfire against such ideas as evident by murder of Dabholkar and Pansare

Its various provisions in fundamental rights, fundamental duties, directive principles and also various legislations provide significant commitment to prevent discrimination.

Fundamental Right against any form of exploitation and against untouchability ensures that these are absolutely intolerable in our modern, liberal society.

Fundamental duties also call citizens to perform their civic duty by condemning any form of discrimination to women.

Directive principles make it a state objective to aspire a country with all social and economic rights. This has been achieved by enabling legislation such as free legal aid to poor and marginalized sections under NALSA.

The Prevention of Atrocities against SC and ST communities is a strict law that imposes many punishments on discriminatory attitude and action.